Williams v. State, No. BH-245

• Court: Court of Appeal of Florida (US)
• Writing for the Court: JOANOS; ZEHMER, J., and VICTOR CAWTHON
• Citation: 11 Fla. L. Weekly 1868,492 So.2d 1388
• Parties: 11 Fla. L. Weekly 1868 Henry WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. BH-245
• Decision Date: 27 August 1986

Page 1388

492 So.2d 1388 11 Fla. L. Weekly 1868 Henry WILLIAMS, Jr., Appellant,
v.
STATE of Florida, Appellee. No. BH-245. District Court of Appeal of Florida,
First District. Aug. 27, 1986.

Michael E. Allen, Public Defender and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.

JOANOS, Judge.

Henry Williams, Jr. appeals from two consecutive sentences of five years for the offenses of burglary and violation of probation. Williams alleges the trial court erred in (1) failing to give his requested jury instruction, and (2) failing to provide clear and convincing reasons for departure from the recommended guidelines range. We affirm in part and reverse in part.

On August 27, 1984, Williams pled guilty to dealing in stolen property and was placed on probation for four years. He served eight months in Duval County Jail as one condition of probation. On March 11, 1985, an information was filed charging Williams with burglary of a structure; and on April 3, 1985, an affidavit for violation of probation charged Williams with violation of two conditions of his probation. On May 23, 1985, the State filed a notice of intent to seek an enhanced penalty, due to William's prior conviction for dealing in stolen property.

On June 11, 1985, Williams was tried before a jury as a co-suspect in the burglary of a grocery store. A police officer testified that after Williams had been apprised of his rights, he stated that he knew a burglary had been planned, that he knew the two individuals involved in the burglary, and that he had received some of the goods taken from the grocery store in return for acting as a look-out. The two

Page 1389

individuals who entered the grocery store testified that Williams had been in the area, but he had left before they actually entered the structure. One of the co-suspects also testified that Williams did not receive a share of the stolen goods.

Williams requested the following special jury instructions:

1. Presence at the scene of a crime, without more, is not sufficient to establish either intent to participate or act of participation.

2. Mere knowledge that an offense is being committed is not the same as participation with criminal intent.

3. Knowledge that a crime is going to be committed and presence at the scene, without more, is generally insufficient to establish aiding and abetting.

The trial court refused to give the requested instructions, on the ground that the standard jury instruction on prinicpals ¹ was an adequate statement of the law.

We find no error in the trial court's denial of Williams's requested jury instructions. It is well settled that a defendant is entitled to a jury instruction on his theory of defense if any evidence was introduced which would support the instruction. Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983); Palmes v. State, 397 So.2d 648, 652 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984); Johnson v. State, 484 So.2d 1347 (Fla. 4th DCA 1986). Refusal to give the instruction is not error, however, when the proposed instructions add nothing to the standard instructions....